Divine v The State of Western Australia - [2019] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DIVINE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 49
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   20 DECEMBER 2018 & 11 JANUARY 2019
DELIVERED          :   22 MARCH 2019
FILE NO/S:   CACR 51 of 2018
BETWEEN:   KATT DIVINE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 1462 of 2016

Catchwords:

Criminal law - Trial by jury - Where some days after conclusion of the trial juror sent an email referring to bullying and intimidation - Where court of appeal heard evidence from juror - Whether evidence of juror gave rise to a reasonable ground for suspicion that a juror engaged in unlawful intimidation of another juror

Legislation:

Criminal Code (WA), s 123

Result:

Leave to appeal on all grounds refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S R McGrath
Respondent	:	J A Scholz & K I Goddard-Borger - 20 December 2018; K I Goddard-Borger - 11 January 2019
Non-party	:	C J Thatcher SC & B D Nelson

Solicitors:

Appellant	:	Stephen McGrath
Respondent	:	The Director of Public Prosecutions (WA)
Non-party	:	State Solicitor's Office

Case(s) referred to in decision(s):

Biggs v Director of Public Prosecutions (WA) (1997) 17 WAR 534
Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Nanan v The State (Trinidad and Tobago) [1986] AC 860
NH v Director of Public Prosecutions (SA) [2016] HCA 33; (2016) 260 CLR 546
R v Minarowska (1995) 83 A Crim R 78
Shrivastava v The State of Western Australia [2011] WASCA 8
Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Smith v The State of Western Australia [No 2] [2016] WASCA 136; (2016) 263 A Crim R 449

JUDGMENT OF THE COURT:

Introduction

The appellant was tried on an indictment containing the following three counts:
(1)Possession of methylamphetamine with intent to sell or supply.
(2)Possession of methylamphetamine with intent to sell or supply.
(3)Possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained.
The appellant was found guilty, by a majority of at least 10, on count 1. The jury returned unanimous verdicts of guilty on count 3 and not guilty on count 2.
The appellant appeals against her convictions, essentially on the ground that matters occurring in the jury room, in the course of the jury's deliberations, gave rise to a reasonable ground for suspicion that one or more jurors engaged in unlawful intimidation of a juror contrary to s 123 of the Criminal Code (WA), thereby occasioning a miscarriage of justice.
In our opinion, for the reasons that follow, there is no merit in the appellant's grounds of appeal. We would refuse leave to appeal and dismiss the appeal.

The course of the trial following the retirement of the jury

The jury retired at 11.15 am on 26 October 2017.[1] Sometime before 2.00 pm on that day, the trial judge received two questions from the jury, in the following terms:[2]
(1)With reference to indictment 3, does the entire $15,000 need to be suspected of being unlawful, or just portions?
(2)May we please get a transcript of Ms Kotsidis' evidence given?
[1] ts 363.
[2] ts 365.
The judge responded to these questions. It is not necessary to set out the judge's directions in response to these questions.
At about 4.27 pm, the judge asked questions of the jury foreperson, directed to ascertaining whether it was appropriate to give a majority direction. In response to questions from the judge, the jury foreperson indicated that the jury had reached a unanimous verdict on at least one of the counts on the indictment and that, given further time, there was a prospect that the jury would be able to reach a unanimous verdict on the remaining count or counts.[3] In light of that response, the judge did not, of course, give a majority direction. The jury retired again at 4.30 pm.[4]
[3] ts 372 - 373.
[4] ts 373.
A little before 5.45 pm, the trial judge received another note from the jury. The note stated that the jury had reached a verdict on two charges but, in respect of one charge, was unable to reach a unanimous decision.[5] The judge directed the jury that given the length of time they had been deliberating the court could accept a verdict of at least 10 of the jury.[6] The jury then retired.
[5] ts 375.
[6] ts 375.
Following the retirement of the jury, the judge observed to counsel that Juror 291 appeared to be very distressed. She indicated that she would not be inclined to allow the jury to deliberate beyond about 6.30 pm that night.[7]
[7] ts 376.
At 5.51 pm, the jury returned to deliver its verdicts. As we have said, the jury delivered a majority verdict on count 1, a unanimous verdict of not guilty on count 2, and a unanimous verdict of guilty on count 3.[8]
[8] ts 376 - 377.

Juror 291's email

On 5 November 2017, a member of the jury, to whom we will refer as Juror 291, sent an email to the associate to the trial judge. For reasons explained below, it is not appropriate to reveal all of the content of the email, since to do so would breach the exclusionary rule preventing disclosure of the deliberations of a jury. However, part of the email is capable of being seen as falling outside the scope of the exclusionary rule. That content is set out below:
Your Honour,
I am writing to you to express my concern regarding my recent experience as a juror for the trial of Ms Kat Divine. I am unsure whether my experience was appropriate in the context of ensuring Ms Divine received a fair trial, and would appreciate your guidance in resolving these doubts.
…
I also feel that I was increasingly bullied and intimidated during the course of the day of deliberations, given I was one of the two jurors who did not agree with the eventual majority verdict of guilt on the first charge. This intimidation reached the point where I became so distressed I was shaking and crying, and so I shut down and stopped contributing to discussions. I am very concerned that the pressures I felt from the sustained and increasing intensity of bullying resulted in my [sic] physically and emotionally unable to continue effectively in the process of deliberations. I am concerned this means I therefore failed to properly execute my role of juror adequately, as I was not able to continue to advocate my viewpoint in the hope that I might be able to persuade another juror.
Additionally, the fact that from the beginning of deliberations I was in a minority of two jurors voting that Ms Divine was not guilty on the first charge meant that all deliberations from the beginning were framed with the onus on myself and one other juror having to prove that Ms Divine was not guilty, rather than beginning deliberations from a position respectful of the overarching principle of the presumption of innocence.
I am not sure if my concerns are valid ones, or to whom I should address them or am allowed to address them to. I am also unsure whether or not anything can come out of my sharing these concerns. However, I feel ethically obliged to inform you of them in case they are relevant to your ensuring that Ms Divine received a fair trial.
I would appreciate any advice you may be able to give me on the matter.
Kind regards,

Grounds of appeal

The appellant advances two grounds of appeal, although, in substance, both grounds concern the same point. The grounds are in the following terms:
1. (a)The trial of the appellant miscarried as a result of at least one juror:
(i)being intimidated and bullied, by another juror or jurors, into joining in the guilty verdict for at least one of the charges at trial;
(ii)not being able to discharge their duty to deliberate with proper regard to the directions to the jury;
(iii)being prejudiced against the appellant due to the nature of the charges against her.
…
2.The trial judge erred in not making the relevant inquiries with regard to an incident which gave rise to a reasonable apprehension of bias as to whether the jury would discharge its task impartially.
Ground 1(b) was abandoned at the hearing of the appeal.[9]
[9] Appeal ts 94.

Legal principles

There is a long‑standing general rule in the administration of criminal justice under the common law that once a trial has been determined by a judgment of acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict.[10] It will be convenient to refer to this rule, as often occurs, as the exclusionary rule.
[10] Nanan v The State (Trinidad and Tobago) [1986] AC 860, 870 - 871; Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 [1]; NH v Director of Public Prosecutions (SA) [2016] HCA 33; (2016) 260 CLR 546 [103]; R v Minarowska (1995) 83 A Crim R 78, 84 - 85; Biggs v Director of Public Prosecutions (WA) (1997) 17 WAR 534, 556 - 558; Shrivastava v The State of Western Australia [2011] WASCA 8 [24], [62].
In Smith v The State of Western Australia, the High Court upheld an appeal from this court in relation to a note, apparently written by a juror, alleging that he had been physically coerced by another juror into changing his verdict. The High Court held that this court had wrongly dismissed the appellant's application for an inquiry into the allegation made in the note. In Smith, the High Court enunciated the following propositions concerning the limits of the exclusionary rule:
(1)The rationale for the rule lies in the preservation of the secrecy of a jury's deliberations to ensure that those deliberations are free and frank so that its verdict is a true one and to ensure the finality of that verdict.[11]
(2)Unlawful physical coercion exerted by one juror upon another cannot properly be regarded as part of the course of free and frank deliberation by the jury.[12]
(3)Evidence by a juror that unlawful pressure or influence has been applied to him or her by another juror in relation to his or her verdict falls outside the scope of the exclusionary rule.[13]
[11] Smith [31]. See also Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161 [33], [35]; NH v DPP (SA) [105].
[12] Smith [36].
[13] Smith [48].
The court further held as follows:
(1)A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion; but where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation as part of its consideration of whether a miscarriage of justice has occurred.[14] In such a case, the question arising is not merely an issue between parties, but one concerning the institutional integrity of the system of justice.[15]
(2)If there is evidence capable of belief which gives rise to a reasonable ground for suspicion that one juror has exercised unlawful intimidation over another, then, on the face of things, there has been a serious breach of the presuppositions of the trial that casts a shadow of injustice over the verdict.[16]
(3)The test applicable to the discharge of a juror or jury, namely whether it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially, is to be applied to determine whether a miscarriage of justice occurred arising from any alleged unlawful coercion.[17] That is, in the circumstances of Smith, if the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that a juror has not discharged its task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question.[18] In other words, if a court of appeal is unable to exclude a real suspicion that a juror has been improperly influenced, the conviction cannot be allowed to stand.[19]
(4)The note written in Smith was capable of creating a reasonable suspicion that criminal conduct influenced the verdict of a juror, contrary to s 123 of the Code.[20]
(5)Whether the shadow of injustice cast on the verdict by the note could be dispelled required the conduct of an inquiry by the sheriff under the supervision of the Court of Appeal.[21]
[14] Smith [50].
[15] Smith [52].
[16] Smith [54].
[17] Smith [54] - [55].
[18] Smith [55].
[19] Smith [59].
[20] Smith [61].
[21] Smith [62] - [66].
Following the decision of the High Court in Smith, this court conducted an inquiry into the allegations made in the juror's note. After hearing evidence from jurors, the court was satisfied that, in the course of the jury deliberations, there was no unlawful or improper coercion, threat or intimidation applied to any juror.[22] Martin CJ, with whom Mazza JA agreed, said as follows, concerning the principles to be applied in determining, after the conduct of the inquiry, whether there has been a miscarriage of justice:
(1)It is for an appellant to establish a miscarriage of justice.[23]
(2)An appellant may discharge that burden by adducing evidence that is capable of belief and which gives rise to reasonable grounds for suspicion that unlawful intimidation of a juror has occurred. If that evidentiary burden is discharged, the appeal must be allowed unless the integrity of the verdict is put beyond question by other evidence. Generally, that other evidence will only be adduced through the conduct of the inquiry.[24]
(3)Once the point of a curial inquiry is reached, because the institutional integrity of the system of justice is at stake, and because only the court has the power to override the confidentiality provisions necessary to enable the inquiry to proceed, it is no longer appropriate to speak in terms of the burden of proof resting upon one or other party.[25]
(4)As stated by the High Court, the test to be applied to whether an irregularity has given rise to a miscarriage of justice is the reasonable apprehension test stated in [16](3) above. That test is to be applied to the facts found by the court concerning the events said to have given rise to the irregularity. So, for example, if the court finds, after seeing and hearing the evidence, that the alleged unlawful or improper pressure did not occur, then there has been no irregularity or event capable of giving rise to a reasonable apprehension, and the appeal must be dismissed.[26]
(5)His Honour noted that there may be cases, of which Smith was not an example, in which, at the end of the inquiry, the court is unable to determine, to the requisite degree of satisfaction, whether or not the events said to have given rise to the irregularity occurred. In such a case, the proper course would be to allow the appeal, quash the conviction and order a new trial.[27]
[22] Smith v The State of Western Australia [No 2] [2016] WASCA 136; (2016) 263 A Crim R 449 (Smith (2016)) [348], [430], [435].
[23] Smith (2016) [42].
[24] Smith (2016) [42].
[25] Smith (2016) [44].
[26] Smith (2016) [55]; see also [386].
[27] Smith (2016) [56].
That brings us back to the present appeal. We turn next to outlining the procedural steps taken in the conduct of the appeal, and the reasons for those steps.

The directions hearing of 21 September 2018

On 21 September 2018, following the filing of the appellant's case, the court heard submissions from the parties as to what, if any, steps should be taken to obtain further evidence, or to conduct an inquiry, as to matters the subject of the email sent by Juror 291.
The appellant submitted that the exclusionary rule did not preclude this court from obtaining and acting upon evidence from Juror 291 that:[28]
(1)she was subjected to intimidation and bullying, by another juror or jurors, in relation to a verdict;
(2)at least one juror had made up their mind before the evidence was presented at trial and before the trial judge charged the jury; and
(3)at least one juror was prejudiced against the appellant due to the nature of the charges against her.
[28] Appellant's submissions [32], [43]; appeal ts 17 - 18.
The court was of the opinion that the email gave rise to a reasonable ground for suspicion that an irregularity of a type which fell outside the scope of the exclusionary rule may have occurred. That irregularity was confined to the allegation that the juror in question was subject to intimidation and bullying by another juror or jurors. It did not extend to or include the other allegations made in the juror's email and referred to in [20](2) or (3) above.[29]
[29] Appeal ts 26.
The contents of the email provided a sufficient foundation to commence an inquiry in the manner more precisely identified by the court's orders. In broad summary, the orders provided for the sheriff to appoint a lawyer to assist in the investigation of matters relating to the juror's email, and for the lawyer to obtain an affidavit from the juror, setting out in full the circumstances of the alleged bullying and intimidation referred to in the juror's email.

An affidavit of Juror 291 is obtained

In accordance with the court's orders, the lawyer for the sheriff caused an affidavit of Juror 291 to be prepared and sworn. We will detail the contents of the affidavit later in these reasons.

The directions hearing on 23 November 2018

On 23 November 2018, the court heard submissions from the parties as to the steps that should be taken, in light of the contents of Juror 291's affidavit.
The appellant submitted that, in light of the affidavit, steps should be taken to identify the other juror who was part of the minority and obtain an affidavit from that juror. Alternatively, affidavits should be obtained from all jurors.[30]
[30] Appeal ts 31.
We were not persuaded that the affidavit of Juror 291 warranted such steps being undertaken. However, some parts of Juror 291's affidavit contained generalised statements.[31] Counsel for both parties accepted that it was desirable to hear oral evidence from Juror 291 in order to clarify the juror's evidence, so as to inform the assessment of whether the evidence, taken at its highest, was capable of establishing a miscarriage of justice.[32] Consequently, we made the orders outlined in [30] below.
[31] See [34] below.
[32] Appeal ts 33, 35 -36.
Counsel for the appellant submitted that the subject matter of the oral evidence should not be limited to the question of bullying or intimidation, but should encompass the other points raised in the grounds of appeal, namely whether other jurors had formed opinions before the evidence was heard.[33] In effect, counsel requested the court to reopen its ruling made on 21 September 2018.[34] The court declined to do so. That was for two reasons.
[33] Appeal ts 33 - 35.
[34] Appeal ts 34 - 35.
First, there was no occasion or justification for the appellant to challenge the ruling that the court had made on the previous occasion. The arguments put by the appellant on 23 November 2018 could, and should (assuming the appellant considered the arguments to have sufficient merit to be put), have been put at the initial hearing. No reason was advanced as to why that was not done.
Secondly, and in any event, the argument advanced on behalf of the appellant was without merit. The appellant asserted that a juror who did not follow the judge's direction thereby commits a contempt of court, rendering the juror's conduct unlawful and outside the exclusionary rule.[35] This submission is entirely without substance. An allegation that the jury misapprehended, or failed to apply, the relevant legal principles, falls within the exclusionary rule.[36]
[35] Appeal ts 34 - 35.
[36] See, for example, Biggs v DPP (WA) (544 - 545, 558).

The court made orders for (1) the attendance of Juror 291 to give oral evidence, adduced by counsel for the sheriff, supplementing Juror 291's affidavit; (2) counsel for the appellant and counsel for the respondent to cross‑examine Juror 291; and (3) re‑examination by counsel for the sheriff.[37]
[37] Appeal ts 38.

The evidence of Juror 291

As already explained, Juror 291 gave evidence by affidavit and oral evidence.
By way of broad summary of Juror 291's evidence, the jury's deliberations on the three charges proceeded as follows. The jury began by discussing count 1. At an early stage, the members of the jury individually indicated their position. Juror 291 was one of two people who voted to acquit. Most of the balance of the jury voted to convict, with a couple of people undecided. After some discussion in which it became clear there was a lack of consensus, the jury decided to move on to the other charges. After discussion, the jury unanimously found the appellant not guilty of count 2. As a result of the jury's discussion of count 3, a question was asked of the judge. Different views were taken of the meaning of the judge's answer to that question. Juror 291 began to doubt her interpretation of the judge's instructions to the jury. The jury reached a 'consensus', and a unanimous verdict of guilty, in respect of count 3. The jury then returned to consider count 1 after they had a break for lunch.[38]
[38] Juror 291 affidavit [38] - [44]; appeal ts 65 - 70.
As counsel for the appellant ultimately accepted,[39] it is only what occurred after lunch, in the course of deliberations concerning count 1, that gives rise to any questions of intimidation or other unlawful conduct. Counsel accepted that, consequently, the grounds of appeal impugned only the verdict on count 1.[40]
[39] Appeal ts 92.
[40] Appeal ts 92.
Juror 291's evidence concerning this period includes, relevantly, the following:
(1)When the jury returned to deliberating on count 1, other jurors 'began going quite hard' at Juror 291 and the other juror who voted to acquit, making Juror 291 feel like everyone was 'zooming' in on them.[41] In oral evidence, Juror 291 elaborated, saying that 'it felt like everyone was very irritated because they wanted to get out of there and so they were becoming increasingly frustrated that we were not prepared to change the way we were voting'.[42]
[41] Juror 291 affidavit [45].
[42] Appeal ts 48.
(2)During deliberations on the first charge, people became 'increasingly aggressive and frustrated, raised their voices, banged stuff down on the table and threw themselves back in their chairs, acting as if [Juror 291 and the other person voting to acquit] were being totally unreasonable. There was a lot of eye‑rolling and sarcasm. Jurors were standing up and expressing irritation by gesticulation, tone of voice and by invading [Juror 291's] personal space'.[43] In oral evidence, Juror 291 elaborated, saying the gesticulation referred to jurors in frustration 'throwing themselves around', throwing their hands up in the air, and throwing things down.[44] Of those involved in this, the foreman was to her immediate left. The others involved were two or more seats away from her.[45]
[43] Juror 291 affidavit [49].
[44] Appeal ts 49.
[45] Appeal ts 49.
(3)Juror 291 and the other juror who voted to acquit were 'talked over a lot'.[46]
(4)Juror 291 put forward 'active arguments' for acquittal, including writing 20 points Juror 291 considered established reasonable doubt on a whiteboard.[47] The other juror also spent some time explaining her position.[48] After Juror 291 wrote the points on the whiteboard, one of the jurors went through the points and responded to them. Then, when he felt satisfied they had been dealt with, he rubbed them off the whiteboard without asking Juror 291 if she agreed.[49]
(5)At one point, a male juror said, 'these two are never going to change their mind', and another said, 'they're not going to change their minds, we'll be here all day'.[50]
(6)In one exchange between Juror 291 and the foreman, the foreman's manner was 'aggressively dismissive'.[51] When asked to elaborate on that observation, Juror 291 said that the foreman was 'yelling and talking over me. There was something happening with his right hand … he might have been sort of putting his fist on the table or something, but I can't remember'.[52]
(7)A female member of the jury got 'really aggressive' as well.[53] In oral evidence, Juror 291 elaborated, saying that the woman was 'very loud and she was probably the person that yelled the most' and, as she was sitting next to the foreman, she was in very close proximity to Juror 291.[54]
(8)During the afternoon, people were standing up, moving around a bit more or pacing and walking around, as well as gesticulating when they made their points.[55]
(9)Other members of the jury asked Juror 291 and the other dissenting juror to explain why they thought the appellant was not guilty, after which the other members '[shut] down every point [the two jurors] made'. That is, they were 'laughing, being dismissive, occasionally countering with some kind of argument, and not really listening'.[56]
(10)Other members of the jury became 'increasingly angry' that Juror 291 refused to change her mind. She described the shouting as 'really horrible', saying that she became incredibly distressed and was not coping with the fact that everyone was really angry that she refused to change her mind.[57]
(11)In response to the other jurors, and to the situation, by about 3.00 pm, Juror 291 'just shut down and was violently shaking and just did not want to communicate with anyone and needed to be left alone'. She could not stop shaking.[58]
(12)When they returned to the courtroom and were given the majority verdict direction, Juror 291 was crying.[59]
[46] Juror 291 affidavit [50].
[47] Juror 291 affidavit [51], [63]; appeal ts 49 - 50; 70 - 71.
[48] Juror 291 affidavit [51].
[49] Juror 291 affidavit [64] - [65]; appeal ts 70 - 73.
[50] Juror 291 affidavit [52], [55].
[51] Juror 291 affidavit [53].
[52] Appeal ts 50.
[53] Juror 291 affidavit [54].
[54] Appeal ts 50.
[55] Juror 291 affidavit [57], [58], [61].
[56] Juror 291 affidavit [59] - [60].
[57] Juror 291 affidavit [66].
[58] Juror 291 affidavit [68].
[59] Juror 291 affidavit [70].
In her affidavit, Juror 291 explained that the bullying and intimidation referred to in her email was a reference to the raised voices in anger referred to in her affidavit, people talking over one another, using aggressive tones and being verbally attacked for not changing her mind.[60]
[60] Juror 291 affidavit [78].
Juror 291's oral evidence on 20 December 2018 repeated and confirmed the substance of the account given in her affidavit. In addition to what has already been said, the following further points emerged by way of elaboration or clarification of what she said in her affidavit:
(1)The conduct which Juror 291 described as 'antagonism' or 'aggressive irritation' was manifested in that members of the jury 'became … louder', 'were throwing themselves in their seats', 'banging around' and 'throwing things down', with 'lots of eye‑rolling', raised voices and 'storming around the room'.[61]
(2)Asked whether any of the antagonism manifested physically, Juror 291 responded as follows:[62]
The lack of - just - I mean, the jury room is already quite a small room, so - but people were standing up and sort of talking over you, you know, so they would be - so I would be sitting down, and they would be standing up and being quite, you know, standing - oops, sorry - standing over you, you know, sort of really frustrated and storming around the room, so just a lack of - there was - you know, personal space was being compromised and just people, you know throwing things around in irritation, like the papers or whatever or pens.
(3)The foreman 'shouted over' her on two occasions when she thought something mattered in terms of the judge's instruction, saying 'doesn't matter', and he 'wasn't open to the fact that he could possibly be wrong' and was 'throwing himself around and banging on the table';[63] he also 'clenched his teeth', 'wouldn't make eye contact' and 'would just be really assertive'.[64]
(4)Apart from this conduct of the foreman, Juror 291 said that she 'can't remember' or 'picture' what he was doing that caused her to describe him as 'aggressively dismissive', but he 'might have been sort of putting his fist on the table or something'.[65]
(5)When asked to describe the movement of the person who invaded her personal space, Juror 291 described two instances. First, she stated that she would occasionally walk to the window and seat herself there to get away from the tension, after which the foreperson or another male would occasionally 'come over'.[66] Secondly, when Juror 291 was writing the 20 points on the whiteboard, another male juror came up and was 'right close up to [her] and wouldn't let [her] just finish writing the list, and like, just, was right there while [she] was writing on the board, and again, it's a very small room.'[67] The male juror did not make physical contact with her at any point.[68]
(6)The things she referred to as being thrown around or thrown down were notepads and pens, as well as a biscuit being thrown down on the table.[69]
[61] Appeal ts 46 - 48.
[62] Appeal ts 47.
[63] Appeal ts 47.
[64] Appeal ts 60.
[65] Appeal ts 50.
[66] Appeal ts 49.
[67] Appeal ts 50.
[68] Appeal ts 50.
[69] Appeal ts 47, 60.

Directions made on 20 December 2018

On 20 December 2018, the court directed that, on 11 January 2019, it would hear submissions on the following three issues:[70]
(1)whether the affidavit of Juror 291, and her oral evidence, give rise to a reasonable ground for suspicion that an irregularity of a type which falls outside the scope of the exclusionary rule may have occurred (Issue 1);
(2)whether the court should require the sheriff, with or without assistance from the WA Police, to conduct further inquiries into the allegations made by Juror 291, including inquiries of all other jurors, and if so, the orders that the court should make (Issue 2); and
(3)whether the appellant should be granted leave to appeal on any of the grounds of appeal in the appellant's case filed 7 June 2018 (Issue 3).
[70] Appeal ts 77.

Appellant's submissions on Issue 1

The appellant submits that Juror 291's evidence is evidence of unlawful conduct in the form of acts of intimidation, contrary to s 123 of the Criminal Code.[71] The appellant does not suggest that the evidence raises an issue of any other form of unlawful conduct, apart from a contravention of s 123 by threats and intimidation.[72]
[71] Appellant's submissions regarding the conduct of the inquiry [10] - [11]; appeal ts 81.
[72] Appeal ts 81, 89.
The appellant does not suggest that any particular conduct the subject of Juror 291's evidence can itself be said to constitute evidence of an offence under s 123.[73] Rather, it is the whole of the conduct described in the evidence of Juror 291 which, taken together, constitutes evidence of an attempt to influence by intimidation.[74] Any offence was committed by some or all of: the foreman, an elderly female juror, and the other two male jurors whose conduct is specifically referred to in parts of Juror 291's evidence.[75]
[73] Appeal ts 87.
[74] Appeal ts 90.
[75] Appeal ts 88.
The appellant submits that there should be further inquiry, with the assistance of the sheriff, because Juror 291's evidence does not 'dispel the initial shadow of injustice cast upon the verdict'.[76]
[76] Appellant's submissions regarding the conduct of the inquiry [19].

The disposition of Issue 1

The question of whether there is a reasonable ground for suspicion that an offence may have been committed under s 123 arises in this case in a framework that is very different from the framework in which the High Court considered the corresponding question in Smith. In Smith, the question for the High Court arose in circumstances where this court had decided that the juror's note was insufficient to warrant an inquiry. Thus, analysis was directed to what could be taken from the juror's note. By contrast, in this appeal, this court has received an affidavit of Juror 291 and has had the benefit of seeing and hearing Juror 291 give oral evidence concerning the deliberations of the jury.
Juror 291 gave her evidence in a manner that left us in no doubt as to her honesty and sincerity. She evidently took seriously her duties and responsibilities as a juror. By way of general observation, in our view, taken as a whole, Juror 291's evidence reveals that (1) she harbours a degree of regret as to the two guilty verdicts reached by the jury, and (2) that regret influences her perception and recollection of the course of the jury's deliberations and her role in them. That is illustrated by Juror 291's evidence concerning the jury's deliberations and verdict on count 3. That verdict was unanimous. Nothing in Juror 291's evidence suggests that her concurrence in the verdict was anything other than the result of her deliberation and choice. In hindsight, however, Juror 291 evidently feels some regret, and degree of responsibility, in having joined in that verdict.[77] In relation to count 1, Juror 291 now regrets that she 'shut down' in response to what she perceived as the aggressive and dismissive conduct of other members of the jury. As she sees it, this led to the result that she failed in her duty to continue to advocate with a view to persuading one or more jurors to come to her view, thereby avoiding a majority verdict of guilty. As she put it in her affidavit, she felt like she did not do her job properly because she gave up too easily.[78] She said, in response to questions from counsel for the appellant, she felt that, because of the physical response she had at what she perceived as the relentless attack, she did not fulfil her obligation to continue to advocate in the hope that she and the other juror in the minority could persuade another juror.[79]
[77] Appeal ts 68 - 69.
[78] Juror 291 affidavit [76].
[79] Appeal ts 62. See also appeal ts 73 - 74.
As we have said, the appellant confined her argument to the contention that Juror 291's evidence gave rise to a reasonable ground for suspicion that one or more jurors committed an offence under s 123 of the Criminal Code. That section provides, so far as is relevant, as follows:[80]
123. Corrupting or threatening juror
Any person who -
(1)Attempts by threats or intimidation of any kind, or by benefits or promises of benefit of any kind, or by other corrupt means, to influence any person, whether a particular person or not, in his conduct as a juror in any judicial proceeding, whether he has been sworn as a juror or not; or
…
is guilty of a crime, and is liable to imprisonment for 5 years.
[80] Criminal Code, s 123.
It can be seen that an offence under s 123(1) has two elements, which are, relevantly, as follows:
(1)conduct amounting to threats or intimidation of any kind; and
(2)by engaging in that conduct, the alleged offender attempts to influence a person in his or her conduct as a juror.
In this context, the concept of attempt has a subjective element. It requires that the person said to commit the offence intended to influence a person in his or her conduct as a juror.[81] The other element of s 123(1) is that, in so attempting, the person used threats or intimidation of any kind.
[81] See, by analogy, the concept of attempt in s 143 of the Criminal Code, concerning attempts to pervert the course of justice, as to which see Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104 [48], [80], [139], [142]; Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 140 - 141, 144, 148, 159.
Thus, for present purposes, it is a necessary element in any offence under s 123 that the juror (or jurors) said to have committed the offence used threats or intimidation.
Whether conduct might amount to a threat or intimidation is to be evaluated objectively. It is not a question of identifying Juror 291's emotional response to what occurred.
A court should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion.[82] The importance of this cautionary observation warranted its repetition by the High Court in Smith.[83]
[82] Smith [50].
[83] Smith [60].
In our view, for the reasons that follow, Juror 291's evidence as a whole does not reveal anything more than robust, and at times heated, debate, and does not give rise to a reasonable ground for suspicion that one or more jurors may have committed an offence under s 123.
As we have explained, for present purposes the question is whether the evidence gives rise to a reasonable ground for suspicion that one or more jurors used threats or intimidation in an attempt to influence Juror 291 in her conduct as a juror. Thus, the question is not whether optimal standards of civility were maintained at all times in the course of the jury's deliberations. The task of jurors may often be challenging in many respects, including intellectually, emotionally and personally. Among the challenges are those arising from the process of discussion and debate between 12 unconnected persons with a view to reaching unanimity on a question or questions of importance. In that framework, it cannot be expected that discussion will always be conducted in a polite and civil manner. From time to time, feelings of frustration, or of experiencing significant interpersonal pressure, may be expected. Jurors may be rude, or even offensive, as occurs from time to time in many spheres of life. None of that means any criminal offence has been committed, and none of it is conduct lying outside the exclusionary rule.
The appellant's submissions often failed to mark the distinction between maintaining standards of civility and committing a criminal offence. For example, the appellant submits that 'one needs to be courteous to your fellow persons. In the jury room, everyone is equal or should be equal in their standing and should therefore be heard equally'.[84] A failure to meet that standard does not give rise to a reasonable ground for suspecting the commission of an offence under s 123. Similarly, the appellant's argument by reference to workplace bullying does not assist the analysis.
[84] Appeal ts 83.
In our view, a useful starting point in the evaluation of Juror 291's evidence is her explanation, in her affidavit, of what she meant by the bullying and intimidation to which she referred in her email. Juror 291 explained that the bullying and intimidation were 'the raised voices and anger [she had referred to earlier in her affidavit] - people talking over one another, using aggressive tones and [Juror 291] being verbally attacked for not changing [her] mind'.[85] Subject to what is meant by being 'verbally attacked', those matters do not constitute, or give rise to a reasonable ground for suspecting the commission of, an offence under s 123 of the Criminal Code.
[85] Juror 291 affidavit [78].
Conduct or communication that is 'argumentative', 'dismissive' or even disdainful, or in which frustration is expressed, including by using raised voices, interrupting, or the rolling of eyes, falls well short of amounting to, or giving rise to a reasonable ground for suspicion of, unlawful intimidation within the meaning of s 123.
Nothing in Juror 291's evidence suggests there was any element, in anything said by another member of the jury, of a threat to Juror 291's person, property or liberty. Nor was there any physical element, impinging on Juror 291, in what was said or done by other jurors in the course of their deliberations. The throwing down, in evident frustration, of a notepad, pen or biscuit is not evidence of an unlawful threat or intimidation. In her affidavit and oral evidence, Juror 291 used various adjectival characterisations of the attitude or conduct of other members of the jury. Juror 291's response to questions concerning any physical manifestation of her adjectival characterisation of other jurors' attitudes and conduct is instructive for what is not said. See, in this regard, the evidence outlined at [36] above.

These conclusions tend to be confirmed by the following features of the jury's deliberations. The two jurors who held the minority view were given opportunities to put forward their points in support of it. That included Juror 291 having the opportunity to write 20 points in support of her view on the whiteboard. Also, Juror 291, and the other dissenting juror, maintained their position in relation to count 1; they declined to adopt the majority position. The verdict of guilty on count 1 came about only after, and as a result of, the judge's majority direction.
For these reasons, we would determine Issue 1 adversely to the appellant. In our opinion, the evidence of Juror 291 does not give rise to a reasonable ground for suspicion that any member of the jury may have committed an offence under s 123 of the Code.

Issue 2: disposition

As counsel for the appellant accepted,[86] it follows from our conclusion on Issue 1 that there was no occasion to require the sheriff to conduct further inquiries into the allegations made by Juror 291.
[86] Appeal ts 93.

Issue 3: the merits of the grounds of appeal

As the appellant also accepted,[87] the conclusion we have reached on Issue 1 is fatal to both of the appellant's grounds of appeal.
[87] Appeal ts 93.

Conclusion

Consequently, leave to appeal on both grounds must be refused, and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech
22 MARCH 2019